Aug 17, 2018

Employees’ Social Media Conduct: Can Disciplinary Measures Be Taken Out On The Basis Of This? | Zeniath Abiri

One of the most important rights of an employer is the ability to take disciplinary actions against an errant employee. Usually, the employment contract will stipulate actions that are offensive and the punishment to be applied upon such offensive behaviour. The most common forms of disciplinary actions in the workplace includes; warnings, queries, suspension, termination and in extreme cases, summary dismissal.

With the increasing use of various social media platforms such as facebook, instagram, twitter, linkedin and the likes, the question of how far an employee can go on these platforms, before disciplinary actions can be taken out against him, has often arisen. As social media continues to gain in popularity, it was only a matter of time until it became a workplace issue. Because social media is so persuasive, employees and employers can both benefit from a greater understanding of both on-duty and off-duty social media use.

The law has long allowed an employer to discipline an employee for offensive off-duty conduct. The level of consequence would however, depend on the seriousness of the impact of the employee’s conduct. Usually, the impact such behaviour has/had on the employer’s business, is often considered, to ascertain whether the punishment imposed, is justifiable. Social media acts that lead to any of the following may attract justifiable punishment;

1.     Harm to the reputation of the business or its product;

2.     Other employees refusing or being reluctant to work with that person;

3.     A serious breach of the law; and/or

4.     Disruption of the otherwise efficient management and function of the workforce.

However, employers must ensure that the disciplinary step taken, fits the impact of the offensive social media conduct.  For example, in Amalgamated Transit Union, Local 508 v Halifax Regional Municipality (HRM), 2017 CanLII 10897, an HRM bus driver made inappropriate Facebook posts when she was off duty. The comments portrayed a particular community on her bus route in a very bad light and the Employer worried that these comments would harm the reputation of Halifax Transit. The Employer dismissed the employee on the basis of this.  To draw the connection between the off-duty Facebook posts and work, the Employer led evidence of co-workers from that community who were deeply offended by the comments and said they would not work with the “grievor” again. Some of the co-workers saw her posts, and they shared it with other co-workers. Further, co-workers testified that they were very upset by the posts, and that the posts led to disruptions at the workplace and conflict between employees. The arbitrator readily concluded that the “grievor’s” post had a “real and material connection to the workplace”.

The arbitrator also found that the grievor’s post had significant potential to harm the Employer’s reputation. She specified that her conclusion was not based on evidence of widespread harm but rather “as a matter of common sense, it is reasonable to conclude that” the “grievor’s” posts would be upsetting to residents of the community she maligned.

Based on those conclusions, the arbitrator found that the “grievor’s” conduct warranted some discipline. However, she felt that the damage to the Employer’s reputational interests was not so substantial that the “grievor’s” on-going employment was untenable. The arbitrator went on to consider the impact of any potential mitigating factors. She subsequently concluded that the termination was not warranted and she imposed a 30-day unpaid suspension instead.

Also, in the American case of, In the Matter of the Tenure Hearing of Jennifer O'Brien, State Operated School District of the City of Paterson, Passaic County+2013 N.J. Super. Unpub. LEXIS 28 (App. Div. 2013), the New Jersey Appellate Division affirmed the dismissal of Jennifer O'Brien (O'Brien), a tenured first grade teacher in Paterson, New Jersey, based on derogatory Facebook comments she made about her students. Frustrated that the school was not addressing the behavioural and disciplinary issues of her students, many of whom were African-American or Latino, O'Brien posted the following on her personal Facebook page:

  • "I'm not a teacher - I'm a warden for future criminals!"
  • "They had a scared straight program in school - why couldn't [I] bring [first] graders?"

O'Brien was subsequently removed by the school board and tenure charges were filed against her. The Administrative Law Judge (ALJ) and Acting Commissioner of Education determined that O'Brien's actions warranted her removal. The ALJ found that O'Brien engaged in "conduct unbecoming a teacher" and "failed to maintain a safe, caring, nurturing, educational environment."

The appellate court agreed with the ALJ's findings that the seriousness of O'Brien's conduct warranted her removal and that the Facebook postings were not protected by the First Amendment because O'Brien was not commenting on a matter of public concern, but personal interest. There was credible evidence to support the notion that the district's efficient operation of its schools outweighed O'Brien's right to free speech.

Another example here, is the United Kingdom case of Crisp v. Apple Retail (UK) Ltd (Unreported 20 ET/1500258/2011), a tribunal ruled that an employee was fairly dismissed after he had posted negative comments about his employer and its products, on his private Facebook page.

In addition to the above, where an employee has posted derogatory comments about other employees on his social media account, this may raise further issues in respect of bullying and harassment and same can lead to internal problems in the workplace, such as a reduction in productivity of the bullied or harassed employee. It is important to remember that an employer is vicariously liable for the acts of one employee to another in the course of their employment and therefore appropriate disciplinary action must be taken where this occurs.

As set out above, whether the post constitutes grounds for disciplinary action will depend on the circumstances of the post, its nature and extent. The seniority of the employee in question is likely to be a key factor as well, given that any conduct that indicates bullying or harassment on the part of a manager or supervisor through social media posts may point to or even cause problems in the workplace. Also, any derogatory comments made by a senior member of staff of the company, about the employer and its business, will more likely be taken seriously, by the public.

What an Employer may Consider before Exercising Disciplinary Measures Against an Employee.

Upon becoming aware of an employee’s offensive social media conduct, an employer may consider any or all the following, in the determination of whether it should exercise its disciplinary powers against the employee found wanting and the form of discipline to impose.

1.      Publicity – this includes the nature of the social media platform used (i.e. private e-mail versus public tweet), the number of Friends or followers who can view the initial post, and whether the post has been reproduced or shared. The comments following same will also be considered.

2.      Connection to employment – that is, is a third party capable of drawing a connection between the poster and the Employer? Does the employee hold themselves out to be representative of the business?

3.                  Previous similar allegations – whether the employee has been engaged in, and disciplined for, similar behaviour may be a deciding factor.

4.      Intent to offend/seriousness of the post – this refers to whether the employee only meant the comment as a harmless joke or if they actually intended to upset the recipient, which may have an impact on the decision. Is the post of such a nature that can be believed?

Defences/Mitigating factors that may be raised by an errant employee.

Upon the exercise of disciplinary action against an errant employee, he may raise any of the following, to mitigate the extent of punishment or get his punishment revised/reversed.

1.     Provocation – an employee may raise the defence of provocation if the online outburst is the result of a single, upsetting event. However, if the employee continues to make harmful posts after the heat of the moment has passed, this defence is less likely to work.

1.     Employee remorse – whether the employee has apologized for their behaviour and taken the offensive post down.

2.     Length of service – Generally, an employee with longer service will be more secure than a more junior employee.

3.     Intoxication – as most social media posts happen at home, employees might claim that alcohol or other intoxicant, played a role and should be a mitigating factor.

As far as this writer knows, there is no known legislation on social media use, neither is there any reported judicial authority on this issue in Nigeria, despite the increasing concern of the legal and reputational risks employers may face for their employees’ social media conduct. Because the National Industrial Court of Nigeria tends to tilt in favour of the employee, it is however advised, that employers establish a clear and comprehensive policy on the potential consequences of inappropriate social media conduct, even while off work. Such policy should cover instances of online bullying and harassment. It will be prudent to include this in the employment contract and workplace handbook of the company. Because many employees may not know the impact of what a seemingly “innocent” post on social media, may have on their employer, it is further advised that employees be adequately trained in this area, to avoid any misunderstanding.

In conclusion, despite the fact that there is no clear law on this subject in Nigeria, where there has been an offensive social media conduct in the workplace, an employer may rely on not just its policies, but may rely on statutes and caselaw from other jurisdictions. This in line with Section 254 (C) (1) (f) and (h) of the Constitution of Nigeria (Third Alteration Act) 2010, which enjoins the National Industrial Court of Nigeria, to have recourse to international best practices, in the determination of issues before it.

Zeniath Abiri

Managing Partner

Company Name Abiri & Mustafa Legal Practitioners.

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